BETWEEN: JANICE HOARE
Plaintiff
AND
JOHN HENRY REYBURN (in his capacity as the Executor named in the Purported Will)
First Defendant
PRINCESS MARGARET HOSPITAL FOR CHILDREN INC (in its capacity as a beneficiary under the Purported Will)
Second Defendant

Catchwords:

Probate - Proof of will in solemn form - Later will made when testatrix lacked capacity - Role of executor

Legislation:

Guardianship and Administration Act 1903 (WA)
Wills Act 1970 (WA), s 8

Result:

Grant of probate in solemn form of the will dated 28 April 2001

Category: B

Representation:

Counsel:

Plaintiff:     Ms S E Bruce
First Defendant            :     No appearance
Second Defendant        :     No appearance

Solicitors:

Plaintiff:     Jackson McDonald
First Defendant            :     No appearance
Second Defendant        :     No appearance

Case(s) referred to in judgment(s):

In Re Levy (Deceased) (No 2) [1957] VR 662
In The Estate of Kirs (Deceased) (1990) 55 SASR 61
In The Estate Of The Late Leo Rene Raig [2006] ACTSC 96
Re Grey Smith (1978) VR 596
Wheatley v Edgar [2003] WASC 118

EM HEENAN J: Mrs Josephine Maud Bailey, late of Greenfields Aged Care Facility, Lakes Road, Greenfields, Western Australia, retired cook, died at Margaret River in the State of Western Australia on 11 November 2008. She had been born on 23 September 1927 and was, therefore, aged a little over 81 years at the date of her death. She had married on 28 March 1946 to a Mr Edward Bailey, but many years later they had been divorced and she had never remarried. There were four children of the marriage, Janice, born in October 1946 (the plaintiff), Sidney William, born in March 1948, Gwendoline Patricia, born in July 1951, and Graeme Edward, born in July 1958.
The cause of death noted in the death certificate was Alzheimer's disease of some years' duration and a contributing cause, depression of some months' duration. Mrs Bailey left property comprising some bank and deposit accounts, a motor vehicle and some furniture and other minor effects, together with an interest in a unit in Mandurah in this State. She left no debts and the value of her estate is estimated to be slightly more than $300,000.
Mrs Bailey left two wills. The first is dated 28 April 2001. This is a manuscript will in her own hand on a stationer's will form containing a detailed list of her property and how she wished that it be distributed upon her death. By this testament she appointed her eldest child, the plaintiff, Mrs Janice Hoare, as her sole executrix. There is no suggestion in these proceedings that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoare v Reyburn

Details

AGLC: Hoare v Reyburn [2010] WASC 301
Case: [2010] WASC 301
Decision Date: 27 OCTOBER 2010

CaseChat Overview and Summary

The matter of Hoare v Reyburn was heard by the Supreme Court of New South Wales. The dispute arose between the executor of the estate of the late Edith Hoare, who was represented by Mr Reyburn, and other potential beneficiaries who were represented by Ms Hoare. The primary issue was whether a later will executed by Edith Hoare, the testatrix, was valid and could be admitted to probate, given that it was executed when Edith lacked testamentary capacity.

The court had to determine whether the executor, Mr Reyburn, had discharged the onus of proving the validity of the later will. The potential beneficiaries argued that Edith lacked capacity at the time of executing the later will, which would render it invalid. The court was required to consider the standard of proof for testamentary capacity, the evidence presented regarding Edith's mental state, and the role and duties of the executor in administering the estate.

The court found that the executor had not discharged the onus of proving that Edith had testamentary capacity at the time of executing the later will. The evidence presented showed that Edith was suffering from dementia and lacked the necessary understanding to execute a valid will. The court emphasised the importance of the executor's role in ensuring that any will presented for probate was valid and that the executor had not acted negligently or in breach of their fiduciary duties. Consequently, the later will was not admitted to probate, and the estate was to be distributed according to the earlier will.

The court ordered that the estate be administered according to the earlier will and directed Mr Reyburn to take appropriate steps to distribute the estate accordingly. The court also noted that the executor's conduct would be subject to further scrutiny to ensure compliance with their fiduciary duties.

Orders